The issue of implementing the principles of anti-criminal justice in Ukraine, in particular at the stage of pre-trial investigation, is now, as before, relevant. This issue constantly causes discussions among practitioners, scientists, representatives of the legal profession and the public. It is to him that the honored lawyer of Ukraine, candidate of legal sciences, Volodymyr Sushchenko, draws attention. Analyzing the public space — the news feed, posts on social networks, comments of experts, scientific intelligence of academicians and doctors — he asks the question: do we all equally understand and realize the concept and philosophy of the current Criminal Procedure Code of 2012?
As a member of the Working Group that worked on the philosophy of the Communist Party in 2005–2007 and created the first version of its text, Sushchenko emphasizes: the main task was not only to replace the Soviet CPC of 1960, but to change the very paradigm of the criminal process. Objectivity, impartiality and competition were to be at the center of the new philosophy, as opposed to the Soviet primacy of the state and the presumption of its infallibility. Ideas were formed under the influence of professional discussions and experience of the legal systems of England, Germany, and the USA, thanks to cooperation with international partners.
As Sushchenko notes, issues of pre-trial proceedings were discussed particularly acutely then. At that time, this stage was based mainly on an accusatory model dominated by state coercion. At the center of that system was the postulate that the state does not make mistakes and acts exclusively for the benefit of the working people. The developers of the new model sought to focus on the protection of human rights, the logic of common sense, and reasonable deadlines — from the point of view of an impartial outside observer.
However, as Sushchenko admits, old ideas, life and professional experience dragged the process participants into familiar schemes: they say, they will not understand innovations, they cannot be implemented in Ukrainian realities, they will only create traps for the system. However, then a group of reformers persisted. But, as he states, she did not win – neither herself, nor legal, nor public opinion. Society began to follow the path of compromises, half-solutions and numerous amendments to the already adopted code.
The past 13 years, he emphasizes, prove that the concept of the KPK-2012 was embodied in practice only in formal signs of competitiveness. The essence remained unchanged. The anti-criminal process, as before, shows an accusatory bias. And even attempts to get rid of it are exceptions rather than a systematic movement.
Examining specific examples, Sushchenko stops first of all at the stage of registration of statements about a criminal offense and the beginning of a pre-trial investigation. In accordance with the principles on which the developers relied, mandatory registration of all applications was introduced, but on the condition that they contain real signs of an offense.
“No speculation, no witch hunt, no persecution of political and other opponents, no “retribution for an insult”, no family relations and no nepotism”, – emphasizes the lawyer.
However, in practice, as he admits, everything turned out the other way around. In addition, the judicial branch intervened at this stage, which, as he emphasizes, a priori should not have any relation to the pre-trial investigation, except for limited control over the observance of human rights and freedoms. According to Sushchenko, the judicial process should not be a prosecution of a person, but a trial. Instead, the system got involved in a formal “total registration” of everything in a row, which eventually turned into a bureaucratic and legal trap for the investigative bodies themselves.
“The judicial process is a matter of discretion, not the prosecution of a person at the stage of gathering evidence of a person’s guilt and innocence.
It seems that we, the developers of the concept, were mistaken in our expectations regarding the content of the innovations and the availability of real state resources to implement them, and interested officials of the pre-trial investigation and legal order enforcement agencies in the country tried to sabotage these innovations, including by introducing “total registration of any applications and initiation of pre-trial investigations”. Over time, they also choked on “their own saliva” and began to look for various “things” to make life easier for themselves, “without losing their face.” As a result, we have what we have.” – noted the scientist.
In addition, Volodymyr Sushchenko believes that one of the conceptually unsolved problems in the field of anti-criminal justice remains the issue of detaining a suspect, choosing a preventive measure for him, as well as serving the suspicion and all the legal consequences of such an action. He notes that, in practice, these processes are still accompanied by the dominance of incriminating bias on the part of state institutions. In his opinion, despite the norms that should guarantee impartiality, the system preserves old models of behavior in which legal coercion often prevails over competition and objectivity.
The scientist emphasizes that the only real countermeasure to this trend is the activity of the legal profession, which often focuses not so much on achieving justice as on minimizing threats to the client — detention, arrest, bail or limitation of procedural powers. He emphasizes that in legal practice, legislation and state mechanisms, including the court, are mostly perceived as a one-way tool — to relieve or at least reduce procedural pressure on a person. In such a context, according to him, law and justice are relegated to the background, yielding to the pragmatic interest of the parties to the process.
At the same time, the lawyer notes that all participants in criminal proceedings — judges, prosecutors, lawyers — solemnly declare their devotion to the rule of law in their oaths. However, in practice, everyone understands this concept through the prism of their own role, their own interests and specific tasks, which leads to a fragmented, subjective application of the principles of the rule of law.
Volodymyr Sushchenko pays special attention to the issue of public interest, the role of public activists and journalism in the field of anti-criminal justice. He notes that in this area there is complete confusion and irritation. In his opinion, in Ukraine there are no clear, unequivocal criteria for what exactly should be considered “public interest” at different levels — from the village and city to the region and the country in general. Accordingly, there are no clear methods or tools by which this interest should be realized.
As the scientist notes, public activists, as a rule, remain dissatisfied with the actions of the state in the context of its opposition to criminal offenses. They try to find new methods and tools, as well as promote them in relations with the authorities. At the same time, activists often rely on the support of international organizations. As a result, they often enter into cooperation with those whom they themselves actively criticize, and are forced to make objectively unjustified compromises and palliative solutions, thereby repeating their own mistakes. The existing competition between them, in the end, rather harms the general cause than contributes to its progress.
Also, according to Volodymyr Sushchenko, journalism in the field of anti-criminal justice has its own logic and goals. First of all, it is about the desire to increase the audience, to keep the attention of readers or viewers, to increase one’s own ratings. Added to this is the partial fulfillment of information “orders” by interested parties — individuals, institutions or bodies. That is why the scientist cannot understand why the media so widely covers searches, detentions, arrests, bail determinations, serving suspects to public figures, “implemented criminal schemes” or data on assets – especially at the pre-trial investigation stage. After all, as he reminds, everyone knows that according to the Constitution of Ukraine, no one can be considered guilty of committing a criminal offense until the court legally finds the person guilty and imposes a punishment or releases him from it. However, in practice this prescription remains only a slogan.
The scientist believes that in the information space, the raised “hype” is of primary importance, while the issues of a person’s reputation and actual punishment by a court decision are secondary. This situation, in his opinion, is a tragedy. Because, according to the usual logic of Ukrainian public consciousness, a person is considered guilty at the moment of detention, arrest, service of suspicion or determination of bail – even before any court proceedings. And this point in public judgment, according to Sushchenko, is the biggest problem on the way to the real establishment of the rule of law, the achievement of justice and the guarantee of fundamental human rights and freedoms.
